# Petition for Writ of Certiorari — Moran Shipping Co. v. Blanco

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 416 U.S. 904

## Text

SUPRE»,; -OURT, U,. B.

In The ies
Supreme Court of the United States

OcrToBEeR TERM, 1973

No. 73-965 ‘

MORAN SHIPPING COMPANY AND SULPHUR
CARRIERS CORPORATION,

Petitioners,
vs.
MAURO EVARISTO BLANCO,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Toole, Taylor Moseley Gabel & Milton
Suite 1014 Barnett Bank Building

2
JAMES F. MOSELEY
Jacksonville, Florida 32202 E

Attorneys for Petitioners

INDEX

Page
CITATIONS TO OPINIONS BELOW ....... 1
JURISDICTION 2
QUESTIONS PRESENTED. ........ 2
STATUTE INVOLVED 3
STATEMENT OF THE CASE 4
REASONS FOR GRANTING WRIT ...... 7
CONCLUSION 13
PROOF OF SERVICE .. 14
APPENDIX A . A-l

Opinion of the United States Court of Appeals for

the Fifth Circuit denying Petitioners’ Petition for Re-

hearing and Petition for Rehearing En Banc.
APPENDIX B A-3

Opinion of the United States Court of Appeals for

the Fifth Circuit vacating and remanding the trial

court.

APPENDIX C A-8

Judgment of the United States Court of Appeals for
the Fifth Circuit.

APPENDIX D A-10
Final Judgment of the United States District Court,
Middle District of Florida, granting Petitioners’ Mo-
tion for Summary Judgment.

i

PS RE RT IEEE ET a

a oe

Fe i Se

IN DEX (Continued)
Page

APPENDIX E A-17
Judgment on Decision by the Court, of the United
States District Court, Middle District of Florida.

APPENDIX F A-18
Stay of Mandate to Order of Stay of Mandate to De-
cember 27, 1973 entered by United States District
Court of Appeals for the Fifth Circuit.

TABLE OF AUTHORITIES

Page
Cases
Drake v. General Finance Corporation of Louisiana, 119
F.2d 588 (5th Cir., 1941) ..... 10
Garrett v. Moore, 317 U.S. 239 (1942) 7
Gilbert v. United States of America, 479 F.2d 1267 (2d
Cir., 1973) 7
Harden v. Gordon, 2 Mason 541 (CC, 1823), Fed. Case
No. 6047 ll
New Haven Inclusion Cases, 399 U.S. 392 (1970) .......... 10
Thomson v. Gaskill, 315 U.S. 442 (1942) 10
Sitchon v. American Export Lines, Inc., 113 F.2d 830
(2d Cir., 1940), cert. denied 311 U.S. 705 (1940) ...... 8
Statutes
46 USCA §688 (Jones Act) 3

45 USCA §51-60 (Federal Employers’ Liability Act) ...... 12

Other

Dana, Two Years Before the Mast (1870), (Doubleday
& Co., 1959) 11

TER Sep SP PE IS

1 LANA TE UPR

PTE EA BEL FOWL TEIN GT MLE I AG NTE IS LEONE NE TIO GIO MED

In Che
Supreme Court of the United States

OcroserR TERM, 1973

No.

MORAN SHIPPING COMPANY AND SULPHUR
CARRIERS CORPORATION,

Petitioners,
vs.

MAURO EVARISTO BLANCO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Moran Shipping Company and Sulphur Carriers Corpora-
tion, Petitioners, pray that a Writ of Certiorari issue to review
the Judgment of the United States Court of Appeals for the
Fifth Circuit, entered in the above entitled case on August
20, 1973.

CITATIONS TO OPINIONS BELOW

The Opinion of the United States Court of Appeals for
the Fifth Circuit, printed in Appendix “B” is not yet offi-
cially reported.

St hil eal |

ONTO By

porte rien F8

“SNE RRLPRAY

2

The Opinion of the United States Court of Appeals for
the Fifth Circuit, denying the Petition for Rehearing and
Petition for Rehearing En Banc, printed in Appendix “A”
is not yet officially reported. The Opinion of the Judge of
the United States District Court, Middle District of Florida,
was not officially reported.

JURISDICTION

The Judgment and Opinion of the United States Court
of Appeals for the Fifth Circuit was dated August 20, 1973.

The Petition for Rehearing and Petition for Rehearing
En Banc was denied by the United States Court of Appeals
for the Fifth Circuit on November 8, 1973. Pursuant to
timely Motion by Petitioners, the United States Court of
Appeals for the Fifth Circuit has stayed the mandate to and
including December 27, 1973.

The jurisdiction of this Court is invoked pursuant to Title
28, Section 1254(1) USCA.

QUESTION PRESENTED

1. Whether a Venezuelan seaman alleged to be injured
aboard his Liberian flag vessel and represented by two mem-
bers of the Bar can execute a valid and binding Release of
his rights.

2. Whether the Court of Appeals can constitutionally
consider matters outside the record and reverse a District

Judge based upon matters not of record or before either
Court.

3

3. Whether it is justifiable and binding precedent today,
to hold that a modern day seaman is a “Ward of the Court,”
when he has been represented by two members of the Bar
at the time he executed a Release for personal injuries and
the seaman presently attempts to set same aside.

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED

l. The Fifth Amendment, United States Constitution.

2. The statute under which Respondent filed suit, although
nothing turns on its terms, was 46 USCA §688, (Jones Act),
which provides as follows:

Recovery for injury to or death of seaman

“Any seaman who shall suffer personal injury in the
course of his employment may, at his election, maintain
an action for damages at law, with the right of trial by
jury, and in such action all statutes of the United States
modifying or extending the common-law right or remedy
in cases of personal injury to railway employees shall
apply; and in case of the death of any seaman as a
result of any such personal injury the personal repre-
sentative of such seamari may maintain an action for
damages at law with right of trial by jury, and in such
action all statutes of the United States conferring or
regulating the right of action for death in the case of
railway employees shall be applicable. Jurisdiction in
such actions shall be under the court of the district in
which the defendant employer resides or in which his
principal office is located. Mar. 4, 1915, c. 153, § 20,
38 Stat. 1185; June 5, 1920, c. 250, § 33, 41 Stat. 1007.”

NSE PETG LPS OT NT REA a esa peaenbera em am

os

STATEMENT OF THE CASE

Plaintiff served as a solderer and welder aboard the SS
“POCHTECA”. Plaintiff was a Venezuelan national and the
vessel was one of Liberian registry. While aboard the vessel
at Tampa, Florida during July, 1967 Plaintiff was injured.
A period of hospitalization at Tampa ensued and after the
hospitalization was concluded Plaintiff rejoined the vessel
at Jacksonville, Florida.

At Jacksonville, Plaintiff retained a member of the Flor-
ida Bar, William C. Bostwick. Mr. Bostwick had been a
member of the Florida Bar since February of 1952. Mr. Bost-
wick obtained a medical report from Tampa General Hospital
physicians, Fernandez and Konnell. Further, Bostwick also
obtained a report from Dr. Hook of Jacksonville reflecting
that Plaintiffs “disability...is no longer present and ...
vision is again normal.”

During September, 1967, Plaintiff left Florida to return
to his country. Mr. Bostwick continued corresponding with
Plaintiff and Plaintiff with his counsel. Further, Mr. Bost-
wick continued negotiations with Defendants’ counsel] and
successfully secured posting of Bond therefrom. Negotiation
resulted in a settlement of $1,000.00 being transmitted to Mr.
Bostwick by the Defendants. Mr. Bostwick took two actions
at that time. He had the file reviewed by another member
of the Florida Bar in his office to confirm his opinion and
it Se Se mee > Sener. Sonne, ‘ieee
Raymos, a member of the Florida Bar.

Victor Raymos, at times material, had been a member of
the Florida Bar for twelve years. He was born in Cuba and
was fluent in Spanish. He wrote to Plaintiff and received

5

letters from Plaintiff in Spanish. Mr. Raymos wrote to Plain-

tiff indicating that Mr. Bostwick had associated him in~

the case and that he, Mr. Raymos, had examined the file
and that, considering all factors, the matter should be settled
for $1,000.00.

Plaintiff corresponded to Mr. Raymos indicating that he
would accept the $1,000.00 on the condition that the com-
pany, i.e., Defendants, would perform plastic surgery on his
face. However, Mr. Raymos in a direct and forthright fashion
wrote to Plaintiff on October 29, 1968 in Spanish and stated
unequivocally that the $1,000.00 would be a complete settle-
ment and that nothing further would be paid and there
would be no operation. So that there would be no misunder-
standing of his advices, Mr. Raymos indicated to Plaintiff
to sign at the bottom of the letter, thereby accepting the
terms of the letter, and instructed Plaintiff to return the
letter to him so that he would be authorized to accept the
settlement offer. Plaintiff returned the letter with the ac-
eeptance executed, mailing same from Caracas, Venezuela.

Thereafter, Mr. Raymos received the check from Defend-
ants with the accompanying Releases. The Releases were
submitted by Plaintiffs counsel to Honorable Morris B. Bern-
baum, the Ambassador of the United States in Caracas, for
execution. Plaintiff appeared at the American Embassy and
the Embassy reported to Mr. Raymos that Plaintiff needed
further assistance in executing the Release. In order to
avoid any misunderstanding it was suggested to Mr. Blanco
that he bring his own translator to the Embassy. Plaintiff
in fact brought his own interpreter, Ramulo Moeller, and the
Release was executed at the American Embassy before three
witnesses, and in the presence of Plaintiffs own translator.
The Release was certified to have been interpreted to Plain-

PACER

DO rere en i

6

tiff by Plaintiffs own translator, the aforementioned Mr.
Moeller.

The monies were thereupon forwarded to Plaintiff's coun-
sel and thence to Plaintiff. The Plaintiff received the money.

From April, 1969 until November, 1971, the matter was
dormant until suit was filed in the United States District
Court.

In November, 1971, Plaintiff filed suit for injuries result-
ing from the July, 1967 accident. Plaintiff was represented
by a member of the Florida Bar with a member of the New
York Bar appearing of counsel. Suit was filed in the United
States District Court in and for the Middle District of Flor-
ida, Jacksonville Division.

Among other defenses, Defendants alleged that Plaintiff
had freely executed the aforementioned Release concerning
the July, 1967 accident. Defendants further deposed the
members of the Florida Bar who had represented Plaintiff
throughout the settlement negotiations. At neither deposi-
tion was Plaintiff's present counsel in attendance.

Defendants moved for Summary Judgment and the Court
granted same pursuant to its Order and Opinion of March
22, 1973. On that date, Judgment was entered in favor of
Moran Shipping Company and Sulphur Carriers Corporation
and the action dismissed on the merits (Appendix D).

The United States Court of Appeals for the Fifth Circuit
reversed (Appendix B).

OLS SEE PAE AT SR LOPLI EL PEA IIE ROE IELTS

7

REASONS FOR GRANTING THE WRIT

A. A RELEASE EXECUTED BY A SEAMAN REPRE-
SENTED BY TWO COMPETENT ATTORNEYS,
WHERE THE SEAMAN AND ATTORNEYS ACT
WITH LEGAL AND MEDICAL ADVICE CONSTI-
TUTES A BINDING RELEASE AS A MATTER OF
LAW.

The Ruling of the United States Court of Appeals for
the Fifth Circuit effectively makes settling a seaman’s case
impossible. If representation by two competent counsel is
not enough, indeed what must it take?

The test of Garrett v. Moore, 317 U.S. 239 (1942) is not
achieving the impossible, but merely securing an assurance
that the seaman has a “full understanding of his rights” and
is not mistreated. The reason for the rule arose from the
days of wood ships and hardships, where overreaching by the
shipowner was most possible. The reason for the rule, set
forth in Garrett was never to be interpreted so as to make
good faith, fair handed negotiations impossible. But such
an impossibility will result under the Opinion of the United
States Court of Appeals for the Fifth Circuit.

The Opinion of the United States Court of Appeals for
the Fifth Circuit is in conflict with fair and reasonable in-
terpretations of seaman’s rights, such as appears in Gilbert
v. United States of America, 479 F.2d 1267 (2nd Cir., 1973).
In that case, Plaintiff seaman, one Gilbert, attempted to set
aside a settlement on the basis that same was not authorized.
The United States Court of Appeals for the Second Circuit
stated that where express authority is given, an attorney
may compromise the matter and same is binding upon his

8

The Respondent seaman herein was adequately and amply
represented by two members of the Florida Bar during his
settlement negotiations. The trial court had depositions of
both counsel before the court in making the initial decision.
The Respondent retained, in Jacksonville, counsel of twenty
years experience and the court found him to be most compe-
tent. Since Respondent spoke Spanish and saw fit to return
home to Venezuela, the Jacksonville counsel obtained ad-
ditional counsel on behalf of Respondent and sought Spanish-
speaking and Cuban-born counsel so as to better communi-
cate and advise on the merits of Respondent’s claim.

The matter for this Court to consider and the reason to
grant this Writ is to determine whether or not a seaman’s
cause of action may be compromised. Must a vessel owner
require to be included the direct communications between the
seaman’s attorneys and the client seaman? Must vessel owners
allow each and every case to go to trial and result in Judg-
ment by a court or jury before a matter is concluded?

Unless this Court rules on this matter the decision of the
Fifth Circuit leads to confusion, misinterpretation, lack of
uniformity and more litigation by seamen.

The decision of the United States Court of Appeals for
the Fifth Circuit is in conflict with the case relied upon by
the District Judge herein. In Sitchon v. American Export
Lines, Inc., 113 F.2d 830 (2d Cir., 1940), cert. denied, 311
U.S. 705 (1940) the United States Court of Appeals for the
Second Circuit recognized that when a seaman executes a
release and acts upon the advice of an attorney, the release
should not be set aside. That Court in affirming a trial
court’s Summary Judgment held that a reasonable policy basis
for this ruling was that “if such a settlement as the one in

9

the case at bar is voided, no release by a seaman could ever
be free from attack, if he subsequently discovers that his
injuries were greater than he had anticipated when exe-
cuting the release”.

A substantial period of time has elapsed since this Court
has directed its attention to the question of seamen’s releases.
The lack of uniformity that will abound by the Fifth Cir-
cuit decision as well as the confusion that will result there-
from commend that the Court grant this Writ and fully
review the decision of the United States Court of Appeals
for the Fifth Circuit concerning this vital issue.

B. THE OPINION OF THE COURT OF APPEALS IS
ERRONEOUS AND AT VARIANCE WITH THIS
COURTS DECISION IN THAT THE COURT UN-
CONSTITUTIONALLY CONSIDERED MATTERS
OUTSIDE THE RECORD AND REVERSED THE
DISTRICT JUDGE ON MATTERS NOT IN THE
RECORD BEFORE EITHER COURT.

In the instant suit, the Plaintiff sued on theories of general
maritime law, Jones Act and Liberian law (alleging in the
Complaint that Liberian law was the same as American gen-
eral maritime law). The United States Court of Appeals and
its Opinion (Appendix “B”) set forth what, to it, was a
critical factor: The fact that Plaintiff had propounded Inter-
rogatories concerning Liberian law and that same had not
been answered. The record reflects that this is untrue. There
were never any Interrogatories filed or served and therefore
none that went unanswered. This basis for the decision made
by the United States Court of Appeals and upon which their
Opinion turns was never part of this case.

SD ELI OPES OTT RES NIE

10

We respectfully suggest that if indeed justice be what is
fair and what is truthful, then the decision of the United
States Court of Appeals must be reversed.

This Court in Thomson v. Gaskill, 315 U.S. 442 (1942)
stated that the review of a District Court’s determination
concerning jurisdictional amount must be confined to the
record before the Court on appeal.

This past rule of law was not followed by the United States
Court of Appeals for the Fifth Circuit.

In New Haven Inclusion Cases, 399 U.S. 392 (1970),
the Supreme Court of the United States refused to consider
matters that were not in the record as evidence.

The United States Court of Appeals refused to follow
this recent rule of law.

In Drake v. General Finance Corporation of Louisiana,
119 F.2d 588 (5th Cir., 1941), the United States Court of
Appeals held that the Court can consider nothing save what
is stated in the record sent up from the trial court.

The United States Court of Appeals did not follow its
own rule of law.

The constitutional protection afforded the Petitioners by
the Fifth Amendment can certainly not be met when one
considers the reliance by the United States Court of Appeals
upon matters outside the record so as to vacate and remand
a case to the District Judge concerning a release entered
into with the advice of two competent attorneys.

2 — — ~ ee ee ae oe Pie cae
a eS EI =

Sy aera

ll

C. THE DECISION OF THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT IS
IMPROPER SINCE SEAMEN SHOULD BE AF-
FORDED NO FURTHER PROTECTION THAN
ANY OTHER PERSON.

In days of Justice Story sitting on circuit in 1823 deciding
the case of Harden v. Gordon, 2 Mason 541 (CC, 1823)
Fed Case No. 6047, one can conjure up a most accurate
mental picture of persons who were entitled to be “wards
of the admiralty”. In that day of wooden ships, sails, minimal
education and lack of collective bargaining, certainly this
was a category or class of persons who had no one to look
to other than the courts or government as a protector. The
status of a seaman before the world in general, and even
the courts, was not an enviable one. For example, Dana,
Two Years Before the Mast (1840) (Doubleday & Co., 1959),
it was accurately stated at Page 353 in discussing the seaman’s
plight:

“It is to be considered, also, that the sailor comes
into court under very different circumstances from
the master. He is thrown among landlords, and sharks
of all descriptions; is often led to drink freely; and
comes on the stand unaided, and under a certain cloud
of suspicion as to his character and veracity.”

Today, however, with the technical equipment aboard
modern-day vessels has come technical persons possessing
highly sophisticated skills and abilities. Their education un-
like one hundred and fifty years ago, would exceed that of
the “man on;the street” who receives no special recognition
or treatment as a “ward”. In its decision of the instant case,
the United States Court of Appeals for the Fifth Circuit,

12

failed to recognize this fact, thereby allowing the law of sea-
men and seamen’s releases to remain static and antiquated.

Competent attorneys are readily available to seamen, as
indeed they are to an increasing segment of the American
community. Further, seamen are able to have the benefits
of collective bargaining which have increased their well-
being and standing in the community.

The traditional “ward of the admiralty” has mentally, in-
tellectually and socially grown up, and he can no longer be
considered a “ward”. The law of this land should recognize
that fact and the law applied in the instant case as to
Petitioners and Respondent should be no different than any
state law or appropriate federal law such as the Federal
Employers’ Liability Act, 45 USCA §51-60.

For this reason, we respectfully urge the Court to grant

this Writ to review the law of seamen’s releases and to
modernize the law in this vital area of admiralty.

. - : Na aed oe ee he et dS

A-l
APPENDIX “A”

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 73-2130

MAURO EVARISTO BLANCO,
Plaintiff-Appellant,

versus

MORAN SHIPPING COMPANY and
SULPHUR CARRIERS CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court for the
Middle District of Florida

ON PETITION FOR REHEARING AND PETITION
FOR REHEARING EN BANC
(Opinion Aug. 20, 1973, § Cir., 1973, ........ F. 2d ........).

November 8, 1973)

Before WISDOM, AINSWORTH and CLARK,
Circuit Judges.

PER CURIAM: The Petition for Rehearing is DENIED and
no member of this panel nor Judge in regular active service

PETE ETD ET POOR as BNE

A-2

on the Court having requested that the Court be polled on
rehearing en banc, (Rule 35 Federal Rules of Appellate Pro-
cedure; Local Fifth Circuit Rule 12) the Petition for Re-
hearing En Banc is DENIED.

MORAN
SULPHUR

SHIPPING COMPANY and
CARRIERS

A-4

Blanco. The motion for summary judgment was based upon
depositions by the attorneys who represented Blanco at the
time he gave the release. Counter-affidavits were submitted
by Blanco and by one of his present attorneys.

The issue is framed in the language of the classic test set
out in Garrett v. Moore-McCormick Company, 317 U.S. 239,
248, 63 S.Ct. 246, 252, 87 L.Ed. 239, 245 (1942):

. . . the burden is upon one who sets up a seaman’s
release to show that it was executed freely, without
deception or coercion, and that it was made by the
seaman with a full understanding of his rights. The
adequacy of the consideration and the nature of the
medical and legal advice available to the seaman at
the time of signing the release are relevant to an ap-
praisal of this understanding.

This circuit has paraphrased the Garrett test in this language:
. . . the burden is on the party setting up the sea-
man’s release to show that it was given by the seaman
with an informed understanding of his rights and a
full appreciation of the consequences of his release.

Cates v. United States, 451 F.2d 411, 414 (1971).

The shipboard accident giving rise to this action occurred
on July 24, 1967 in Tampa, Florida waters and resulted in
Blanco’s hospitalization in Tampa General Hospital. Follow-
ing his discharge from this hospital, Blanco went to Jackson-
ville, Florida where his ship was then in dry dock and came
under the care of a doctor there. He su was re-
leased from the ship and thereupon employed a Jacksonville
attorney who spoke and understood only English. Blanco

Ota

A-5

spoke and understood only Spanish. To make communica-
| tive Venezuela. When a settlement offer eventuated, Blanco’s
English-speaking attorney deposed:

I wrote Mr. Blanco in April of 1968 that I needed
to get a statement from him as to how his injuries
were currently bothering him, what sums he owed for
doctors and medicines, the number of times he has
been treated by a physician since the first of Febru-
ary.

I don’t think I ever got any intelligent reply to that.
Every letter I had was not responsive to it, but I be-
lieve about the time I associated Victor Ramos in the
case and — I'm certain I did by October, 1968.

I see one letter that is translated by Mr. Ramos. It
says, and this is from Blanco — “as of this moment I
have no report.”

Victor Ramos, referred to in this testimony, is another
Jacksonville attorney who was associated by Blanco’s first
counsel because of Ramos’ literacy in both Spanish and
to have been based solely upon the medical reports cover-
ing the Tampa hospitalization or the Jacksonville doctor's
treatment.

bhai abe? eter ee bs oh Sontten

inl ones

In his counter-affidavit, Blanco swears that he had accident-
related plastic surgery at the University Hospital in Caracas,
Venezuela in January, 1969 which was shortly prior to the
consummation of the settlement. He further avers that when
settlement was first advised by his then attorneys, he de-
murred because he needed additional surgery and did not

a Se “ROSS

A-6

want to bear the expense himself. He also inconsistently
declared under oath in the same affidavit that he did not
understand the legal effect of the release and executed it
because he thought it represented no more than a receipt
for his wages aboard ship. The other counter-affidavit, by
one of Blanco’s present counsel, contends that Blanco may
have a right of action under Liberian law because of the
vessel's registry and an additional action under American
law because the vessel might be a “flag of convenience ves-
sel.” The affidavit of counsel further swears that he must
have the answers to previously filed but yet unanswered
interrogatories to know whether Blanco possessed this addi-
tional potential claim at the time he was advised to settle
— information which would go to the adequacy and efficacy
of the legal advice he then received.

The district court utilized the correct legal test from Gar-
rett. The applying it to the facts the court found that there
was no genuine issue as to Blanco’s understanding of the
nature and legal effect of the release that he executed or
as to the fact that Blanco had intimate knowledge of the
various medical procedures which had been performed on
his own face. The court also found Blanco had been afforded
“adequate legal advice.” The problem lies in this latter find-
ing. The depositions of counsel show that their advice to
Blanco was given without knowledge of his Venezuelan sur-
gery. Counsel Ramos described the medical report he ex-
amined as “very mild.” The last report referred to by Blanco’s
English-speaking counsel was dated September 7, 1967. Ob-
viously if counsel were not aware of the subsequent surgi-
cal procedures and their costs and sequelae or any prognosis
for further surgery, they were in no position to advise their
client as to the adequacy of the proposed settlement. There
similarly remains unresolved at this point in this cause the

rest 4 SE eR RAE 9 Be CET EAL ORES,

?-

A-7

legal status of any dual Liberian-American claim Blanco may
be able to assert, it is simply unknown whether either counsel
was aware of such potential claim or took it into account in
arriving at their evaluation.

Giving Blanco the benefit of all reasonable doubts in de-
termining whether a genuine issue of material fact exists [see
C. Wright, Federal Courts 443 (2d ed. 1970)] we must say
on the basis of this summary judgment record that such an
issue remains and must be tried. Without the slightest in-
tent of intimating any decision on the merits, we vacate
the summary judgment entered herein and remand this cause
for further proceedings not inconsistent with this opinion.

VACATED and REMANDED.

D. C. Docket No. CA 71-944-J-S

MAURO EVARISTO BLANCO,
Plaintiff-Appellant,
versus

MORAN SHIPPING COMPANY and
SULPHUR CARRIERS CORPORATION,
Defendants-Appellees.

Appeal from the United States District Court for the
Middle District of Florida

Before WISDOM, AINSWORTH and CLARK,
Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the
record from the United States District Court for the Middle
District of Florida, and was taken under submission by the
Court upon the record and briefs on file, pursuant to Rule 18;

ON CONSIDERATION WHEREOF, It is now here or-

FI OE EET ORE TIE ES Se Pa ees z has SN fla ate et Sead ic ee

Se eel

A-9

dered and adjudged by this Court that the judgment of the said
District Court in this cause be, and the same is hereby, va-
cated; and that this cause be, and the same is hereby re-
manded to the said District Court in accordance with the
opinion of this Court;

It is further ordered that defendants-appellees pay to

plaintiiff-appellant the costs on appeal to be taxed by the
Clerk of this Court.

August 20, 1973

a

Issued as Mandate:

— oe Ss -
Te2= cca OF RS

A-10
APPENDIX “D”
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

No. 71-944-Civ-J-S

MAURO EVARISTO BLANCO,
Plaintiff,
v.

MORAN SHIPPING COMPANY and
SULPHUR CARRIERS CORPORATION,

Defendants.

Filed Ocala, Florida March 22, 1973

ORDER AND OPINION

Plaintiff, a merchant seaman, seeks damages pursuant to
the Merchant Marine (Jones) Act, 46 U.S.C. § 688, for per-
sonal injuries suffered in the course of his employment. The
defendants move for a final summary judgment on the basis
of an accord and satisfaction in the nature of a full release
executed by the parties.

Plaintiff was injured on June 24, 1967, while attempting
to unclog certain sulphur pipes aboard the SS POCHTECA
on which he was employed as a solderer and welder. The
sulphur was emitted from the valves and bumed the plain-

A-ll

tiffs face and eyes. The same day he was admitted, at the
Moran Shipping Company’s expense, to Tampa General Hos-
pital where he remained an inpatient for 15 days. The diag-
nosis was second degree burns of the face, eyelids, conjunc-
tiva and cornea. The doctor’s prognosis was that the plaintiff
would “do very well as far as his eyes are concerned.”

The Moran Shipping Company then sent the plaintiff to
another doctor in Jacksonville for further treatment. After
plaintiffs discharge from employment, he returned to Vene-
zuela where plastic surgery was done on his face. Plaintiff
claims that he still suffers from pains in his eyes and head-
aches and that he needs additional plastic surgery.

The plaintiff executed releases for the amount of $1,000.00
when he was in Venezuela. These plenary releases form the
basis for the defendants’ motion for summary judgment. The
plaintiffs response to this motion is that the said releases
were not valid and therefore without legal effect. The plain-
tiff bases his conclusion on his contention the release was not
fair and was not based on competent medical and legal advice
as is required by the leading case of Garrett v. Moore-Mc-
Cormack Co., 317 U. S. 239 (1942). That case held that “the
burden is on the one who sets up a seaman’s release to show
that it was executed freely, without deception or coercion,
and that it was made by the seaman with a full understand-
ing of his rights. The adequacy of the consideration and the
nature of the medical and legal advice available to the sea-
man at the time of signing the release are relevant to an
appraisal of this understanding.” Id. at 248.

That the plaintiff was afforded adequate legal advice is

supported by the depositions of the two attorneys, Mr. Wil-
liam C. Bostwick and Mr. Victor Ramos, who advised the

P

Be see ennerncearp om ssi mere ae ERE RNIN

A-12

plaintiff in his negotiations with the defendants prior to the
execution of the releases. The plaintiff initially solicited the
legal advice of Mr. Bostwick concerning his rights in regard
to his injuries. Mr. Bostwick filed a libel on the plaintiff's
behalf in this Court in 1967, No. 67-626-Civ-J. In order to
avoid any misunderstanding due to the language barrier, Mr.
Bostwick associated Mr. Victor Raymos, a Cuban-born attor-
ney, who wrote and spoke both Spanish and English fluently.
Both of these attorneys, who were adinittedly able and ex-
perienced members of The Florida Bar, advised the plaintiff
to accept $1,000.00 as “a good settlement” considering cer-
tain factors: the cost of having Mr. Blanco come to Florida
to attend trial and his expenses during the trial and on the
legal opinion of these two lawyers that there was no guaran-
tee that a jury would award him more than $1,000.00.

Mr. Raymos deposed that the release was executed in the
presence of the United States Ambassador to Venezuela, wit-
nesses, a notary public, an interpreter and Mr. Blanco’s own
interpreter. This was not controverted by any of the affi-
davits submitted by the plaintiff.

The plaintiff's contention that he did not understand the
legal nature and effect of the release is contradicted by the
plaintiff's own affidavit which states that he initially would
not sign the release because he thought he needed plastic
surgery. After Mr. Raymos advised him that the company
would not pay for the plastic surgery he decided to sign it
anyway. If Mr. Blanco did not understand that he was re-
linquishing all of his rights against the company he would
not have attached such a condition to the execution of the
release in the first place. Therefore, this Court holds that
there is no genuine issue of material fact that Mr. Blanco
understood the legal nature and effect of the releases which
he executed.

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8

A-13

As to the nature of the medical advice available to Mr.
Blanco at the time of the execution of the release, the affi-
davits and exhibits attached to the pleadings clearly indicate
that the paintiff was fully apprised of the nature, status and
effects of the injuries which he sustained as a result of the
accident. Mr. Blanco executed the releases on April 21, 1969,
almost two years after the injuries were sustained. He had
been examined and treated by physicians on two separate
occasions in Tampa and Jacksonville, Florida, in 1967, and
had plastic surgery performed on his face in Caracas, Vene-
zuela, in January 1969, only three months prior to the exe-
cution of the releases. With the benefit of all this medical
treatment, Mr. Blanco cannot honestly assert that he was
lacking in adequate medical advice at the time he executed
the releases. Therefore, this Court holds that there is no
genuine issue of material fact as to the sufficiency or ade-
quacy of the medical advice available to Mr. Blanco at the
time he signed the releases.

As to the adequacy of the consideration, it is uncontro-
verted that Mr. Raymos and Mr. Bostwick fully apprised
the plaintiff of the countervailing economic considerations
which militated against proceeding to trial: the costs of travel
to the United States for the plaintiff, the living expenses in-
cident to his sojourn here during the trial, as well as the
lack of any assurance that a jury would render a verdict for
more than $1,000.00. Under these circumstances, the plain-
tiff cannot seriously contend that he was overreached eco-
nomically. His interests were fully and ably represented by
two experienced members of The Florida Bar. Therefore,
this Court further holds that there is no genuine issue of
material fact as to the adequacy of the consideration amidst
the various countervailing considerations presented to the
plaintiff.

8B RADE HS ES TMS IPL ONS LIS OREN LN CLIT

A-14

As a result of the foregoing analysis, it seems clear that the
release in question was executed freely, without deception
or coercion, and that it was made with a full understanding
of the plaintiff's rights. The mere fact that the plaintiff was
disappointed in the payment received after payment of at-
torneys’ fees cannot alter the legal effect of the instrument
involved.

This case seems to be controlled by the following lan-
guage in Sitchon v. American Export Lines, Inc., 113 F.2d
830, 832 (2d Cir. 1940):

“It is a different thing to uphold a settlement by a sea-
man in which the compensation paid for his injuries
is adequate and the only advice he has received is
that of the physician of the employer where, as here,
he has the advice of his own doctor and lawyer whose
only bias would probably be in his own favor. If such
a settlement as the one in the case at bar is voidable,
no release by a seaman could ever be free from attack,
if he subsequently discovered that his injuries were
greater than he anticipated when executing the release.

“When a seaman has made a settlement after full in-

vestigation and with independent advice, we can see

no ground for holding it invalid. The question in any
case is whether the seaman, if he is acting alone, has
intelligence enough fully to understand the situation
and the risk he takes in giving up the right to prose-
cute his claim or whether, if he is acting under advice,
that advice is disinterested and based on a reasonable
investigation. Here the seaman and his attorney before
making the settlement relied on two examinations by
the Marine Hospital and the defendant made no sepa-
rate examination. Each party entered into a settlement

£4 IS ST IG LILI FL EES E IIR ae

ee

A-15

based on identical information and conducted in the fairest
manner.”

In the case sub judice, the plaintiff was assisted by two in-
dependent attorneys and several doctors in deciding whether
to sign the release.

It is well settled that unless there are circumstances show-
ing that the seaman lacked a full appreciation of his rights,
that he was under economic duress or was overreached in any
respect, a release may not be set aside. McBrien v. United
States Petroleum Carriers, Inc., 177 F. Supp. 627 (S.D. N.Y.
1959). As the foregoing analysis has disclosed, the plaintiff's
own statements belied his asserting that he did not fully ap-
preciate the rights which he relinquished. In addition, the
plaintiff's affidavits did not disclose the slightest taint of fraud,
duress, coercion or overreaching.

This Court realizes that a “seaman” is a ward of the Court
and defenses to a seaman’s claim based upon a prior release
or settlement must be looked upon with extreme care and
scrutiny. It is also true that the defendant has the burden
of showing that such defenses were fair and equitable to
the seaman. Garrett v. Moore-McCormack Co., 317 U.S.
239 (1942). Because of the independent legal and medical
advice afforded the plaintiff, the defendants have met this
burden. See Sitchon v. American Export Lines, Inc., 113 F. 2d
830 (2d Cir. 1940); McBrien v. United States Petroleum Car-
riers, Inc., 117 F. Supp. 627 (S.D. N.Y. 1959); Corneaux v.
Two-R Drilling Co., 236 F. Supp. 735 (E.D. La. 1964); Flener
v. Waterways Oil Company, 261 F. Supp. 740 (W.D. Tenn.
1966). On the facts presented in the affidavits and exhibits,
this Court concludes that there is no genuine issue of material
fact as to the fairness and equitable nature of the release in

saciltiseeiuacesimaniantaid PEG LEE SEDO OLR COMES ETE

A-16

question and that a final summary judgment is proper. Cor-
neaux v. Two-R Drilling Co., supra; Hassan v. A. M. Landry
& Son, Inc., 321 F. 2d. 570 (Sth Cir. 1963), cert. denied 375
U. S. 967 (1964).

Therefore, it is

ORDERED:

The defendants’ motion for final summary judgment is
GRANTED.

DONE AND ORDERED at Ocala, Florida, this 22nd day
of March, 1973.

/s/ CHARLES R. SCOTT
Judge

CC Gerald Sohn, Esquire
James F. Moseley, Esquire

A-17

APPENDIX “E”

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

No. 71-944-Civ-J-S

MAURO EVARISTO BLANCO,
Plaintiff,
v.

MORAN SHIPPING COMPANY and
SULPHUR CARRIERS CORPORATION,
Defendants.

Filed Ocala, Florida March 22, 1973
JUDGMENT ON DECISION BY THE COURT

It is
ORDERED AND ADJUDGED:

That the plaintiff take nothing, that this action be dismissed
on the merits, and that the defendants Moran Shipping Com-
pany and Sulphur Carriers Corporation recover of the plain- |
tiff Mauro Evaristo Blanco their costs of action. |
DONE AND ORDERED at Ocala, Florida, this 22nd day
of March, 1973. |
/s/ CHARLES R. SCOTT |

Judge

a te at ee eT ID

A-18

APPENDIX “F”

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 73-2130

MAURO EVARISTO BLANCO,
Plaintiff-Appellant,

versus

MORAN SHIPPING COMPANY and
SULPHUR CARRIERS CORPORATION,

Defendants-Appellees.
Filed November 27, 1973

ON CONSIDERATION OF THE APPLICATION of the
Appellees in the above numbered and entitied cause for a
stay of the mandate of this Court therein, to enable Appellees
to apply for and to obtain a writ of certiorari from the Su-
preme Court of the United States, IT IS ORDERED that
the issuance of the mandate of this Court in said cause be,
and the same is stayed for a period of thirty days; the stay
to continue in force until the final disposition of the case by
the Supreme Court, provided that within thirty days from
the date of this order there shall be filed with the Clerk of
this Court the certificate of the Clerk of the Supreme Court
that certiorari petition has been filed. IT IS FURTHER
ORDERED that the Clerk shall issue the mandate upon the

A-19

| filing of a copy of an order of the Supreme Court denying
: the writ, or upon the expiration of thirty days from the date
of this order, unless the above mentioned certificate shall be
filed with the Clerk of this Court within that time.

/s/ CHARLES CLARK
i UNITED STATES CIRCUIT JUDGE

= — Sew eG RE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1600%3A1. Public record. Not legal advice.